Assaad v Minister for Immigration
[2009] FMCA 722
•31 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ASSAAD & ANOR v MINISTER FOR IMMIGRATION | [2009] FMCA 722 |
| MIGRATION – Application to review decision of delegate of the Minister for Immigration not to waive a “no further stay” condition imposed on applicants’ visas – regulation 2.05(4)(a) of the Migration Regulations – 8503 waiver requirement that compelling and compassionate circumstances developed since the person was granted the visa subject to the condition. |
| Federal Magistrates Court Rules 2001 (Cth), r.15.27 Migration Act 1958 (Cth), ss.41, 46 Migration Regulations reg.2.05; Schedule 8, condition 8503 |
| Carr and Another v Finance Corporation of Australia Ltd(No.1) (1981) 147 CLR 246 Eastman v Director of Public Prosecutions of the Australian Capital Territory and Others (2003) 214 CLR 318 |
| Applicants: | WASSIM ASSAAD & IMANE HAMDOUN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2543 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 23 June 2009 |
| Date of Last Submission: | 17 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2009 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2543 of 2008
| WASSIM ASSAAD & IMANE HAMDOUN |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is an application for review of decisions of a delegate of the Minister for Immigration and Citizenship not to waive condition 8503 in Schedule 8 to the Migration Regulations to which the visas held by each of the applicants were subject. While the application for review filed in this Court on 1 October 2008 referred only to a decision of 4 September 2008 which was in relation to Mr Assaad’s subclass 676 Tourist visa granted on 16 May 2008, his wife, Imane Hamdoun, is also an applicant in these proceedings. It appears that the application is also intended to relate to the decision of the delegate of the Minister on 8 September 2008 not to waive condition 8503 that was imposed on Mrs Hamdoun’s subclass 676 Tourist visa. The respondent’s submissions addressed both decisions.
It emerged in the course of these proceedings (in particular from the affidavit of Mr Assaad affirmed on 16 June 2009 and filed on 17 June 2009 and his oral submissions) that Mr Assaad also took issue with the approach of the Department to a request of 2 May 2008 to waive condition 8503 which had been imposed on the different visa (a subclass 679 Sponsored Family Visitor visa) on which he travelled to Australia in February 2008. He suggested that Mrs Hamdoun made a similar request in relation to her subclass 679 visa, but there is no affidavit evidence from her before the Court and she did not attend the hearing.
In addition to the material in the Court Book the respondent relied on an affidavit of Laura Frances Weston affirmed on 22 June 2009 and filed in Court in relation to the issues raised by Mr Assaad in connection with the waiver request of 2 May 2008. A copy of a waiver request form in the name of and signed by Mr Assaad that was received by the Department on 2 May 2008 is in evidence before the Court.
In addition, during the hearing an issue arose in relation to whether the applications for the subsequent subclass 676 Tourist visas granted to the applicants in May 2008 were in writing, as Mr Assaad took issue with the fact that this class of visa was granted as well as the fact that condition 8503 was imposed on the visas granted to him and to his wife in May 2008. In accordance with directions made at the hearing for the filing of information “in relation to the nature of the application for the visitor visa granted to the applicants in May 2008”, the solicitors for the respondent filed an affidavit affirmed by Ms Weston on 29 June 2009 addressing the subclass 676 visa applications and annexing copies of applications for further stay as a visitor signed by each applicant dated 15 May 2008.
The directions made on 23 June 2009 provided for the applicants to file and serve written submissions in response to this material by 1 July 2009. However on 2 July 2009 the applicants filed a document purporting to be an affidavit sworn by Mr Assaad covering a range of issues. The respondent objected and both parties were given leave to file further submissions. The respondent submitted that the applicant’s document should be rejected for a number of reasons. These submissions were not addressed by the applicants in their further submissions that addressed other issues already canvassed at the hearing.
The affidavit should be rejected for a number of reasons. No leave was sought by or given to the applicants to file any further evidence after the hearing. The directions made at the hearing provided only for written submissions in response to the specific information filed by the respondent on 29 June 2009 relating to the visitor visa applications of May 2008 (see Carr and Another v Finance Corporation of Australia Ltd(No. 1) (1981) 147 CLR 246 at 258 per Mason J and Eastman v Director of Public Prosecutions of the Australian Capital Territory and Others (2003) 214 CLR 318 at 369, [143] per Heydon J). The affidavit is not so confined. There is no certification on the affidavit by a translator (see Rule 15.27(2)(b) of the Federal Magistrates Court Rules) and no evidence to satisfy the Court of the requirements of Rule 15.27(3).
In this case the applicant was cross-examined on his affidavit of 16 June 2009. If any further affidavit was accepted after the hearing, a further hearing would be necessary so that the respondent could test it. In some cases such an approach may be warranted in the interests of justice. I have had regard to the fact that the applicants are self-represented, although they have apparently had some “assistance” from a Mr Laba-Sarkis (who is neither a lawyer nor a registered migration agent). However it is clear that the applicants applied for and were granted subclass 676 tourist visas in May 2008 (the only issue that gave rise to the directions in relation to the filing of further information by the respondent after the hearing and submissions about those visa applications). Insofar as the applicants may now seek to raise other issues about the circumstances in which such visas were sought or granted that is not the subject of these proceedings, which relate to the Departmental consideration of waiver requests in relation to condition 8503. I am fortified in my conclusion that the post-hearing affidavit should not be accepted by the fact that to a large extent it consists of submissions, irrelevancies and hearsay. The applicants did not address the respondent’s objections to the affidavit.
The applicants are citizens of Lebanon who were granted subclass 679 Sponsored Family Visitor visas on 19 December 2007. Those visas entitled them to enter Australia and to remain here for three months from the date of arrival. Pursuant to subclause 679.611 of Schedule 2 to the Migration Regulations, the visas were each subject to a number of conditions, including condition 8503, which provides that: “The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia” (the “no further stay” condition).
Section 41(1) of the Migration Act 1958 (Cth) provides that the Regulations may provide that visas, or visas of a specified class, are subject to specified conditions, including “a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia” (s.41(2)(a)). The Minister has, pursuant to s.41(2A), a discretion in prescribed circumstances to waive a condition of the kind described in s.41(2)(a) to which a particular visa is subject under the Regulations.
As indicated, the subclass 679 visas granted to the applicants in December 2007 were subject to condition 8503 which is found in Schedule 8 to the Regulations. Condition 8503 is of the kind described in s.41(2)(a) of the Act. Under s.46(1A) of the Act an application for a visa is invalid if (inter alia) since last entering Australia the applicant has held a visa subject to a condition described in s.41(2)(a) and the Minister has not waived that condition under s.41(2A). Regulation 2.05(4) of the Migration Regulations provides:
For subsection 41(2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41(2)(a) of the Act are that:
(a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:
(i) over which the person had no control; and
(ii) that resulted in a major change to the person's circumstances; and
(b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and
(c) if the person asks the Minister to waive the condition, the request is in writing.
The applicants arrived in Australia on 9 February 2008 and therefore were entitled pursuant to their visas to remain until 9 May 2008. On 2 May 2008 they each lodged a request for waiver of the “no further stay” condition with the Department. A copy of Mr Assaad’s request is in evidence before the Court. The waiver was sought on the basis that since the subclass 679 visas were granted there had been a change in circumstances for Mr Assaad and his wife in that the condition of his nephew, Adam, (who had been born in Australia on 5 November 2007 with severe complications) had worsened significantly and both his parents had developed “some mental health issues”. The waiver request submitted that compelling and compassionate circumstances had developed since the grant of the visa over which they had no control which resulted in a major change to the circumstances of the applicants, in that their assistance was said to be urgently required by Mr Assaad’s brother and his wife in caring for Adam. The waiver application was accompanied by copies of supporting letters from the Children’s Hospital at Westmead in relation to the condition and needs of Adam and the family’s circumstances.
According to Departmental Minutes prepared in relation to waiver requests made by Mr Assaad and Ms Hamdoun on 12 July 2008, the waiver requests of 2 May 2008 were withdrawn on 8 May 2008, on which date fresh waiver requests were made by each of the applicants based on civil unrest in Lebanon. A waiver request dated 8 May 2008 in the name of Mr Assaad referred to the fact that Beirut Airport was on strike and that his flight to Beirut had been cancelled until further notice.
On 12 May 2008 a delegate of the Minister waived the 8503 (no further stay) condition imposed on Mr Assaad’s subclass 679 visa and also the 8503 condition imposed on his wife’s subclass 679 visa in response to the requests of 8 May 2008 based on the then current situation in Lebanon.
The delegate accepted that since the applicants were granted the subclass 679 visas subject to the 8503 condition, compelling and compassionate circumstances had developed over which they had no control and had resulted in a major change to their circumstances.
The letters dated 12 May 2008 advising the applicants of the waivers informed them that they were now not prevented by s.46(1A) of the Migration Act from making a further valid application for a substantive visa while they remained in Australia. It was noted that their visas had expired on 9 May 2008. The applicants were advised to ensure that they lodged valid substantive visa applications as soon as possible or made arrangements to depart Australia.
On 15 May 2008 each of Mr Assaad and Ms Hamdoun made written applications for further stay as a visitor. They were each granted subclass 676 (Tourist) visas on 16 May 2008, in effect until 15 August 2008. As permitted under subclause 676.613 of Schedule 2 to the Migration Regulations, condition 8503 was imposed on each of these subclass 676 visas.
On 15 July 2008 Mr Toufic Laba-Sarkis, who describes himself as a “Community Volunteer”, wrote to the Department on behalf of the applicants referring to the fact that on 12 May 2006 the delegate had waived condition 8503 for the applicants as compelling and compassionate circumstances had developed over which they had no control. According to Mr Laba-Sarkis the applicants had applied for an “extension of visa” valid until 15 August 2008 (although in fact the applicants had held subclass 679 visas and were granted subclass 676 visas after their 679 visas had expired). Mr Laba-Sarkis stated that the applicants now wished to seek “another” waiver to enable them to lodge a substantive visa application. Supporting documents were attached, including a signed waiver request form in the name of Mr Assaad dated 15 July 2008 which expressed appreciation for the “extension of visa” previously given to them and sought a waiver based on the condition of Mr Assaad’s nephew and sister-in-law and Ms Hamdoun’s pregnancy. A copy of a Health Services Australia (HSA) medical assessment of Adam dated 9 July 2008 for the purposes of a carer visa application was attached.
On 29 July 2008 a delegate of the Minister determined this request, received on 18 July 2008, finding that Mr Assaad’s circumstances did not satisfy the requirements of subregulation 2.05(4) of the Migration Regulations. The delegate did not waive the 8503 condition. Specifically, it was not accepted that since Mr Assaad was granted the visa subject to the 8503 condition (that is, the subclass 676 visa granted on 16 May 2008), circumstances had developed over which he had no control which resulted in a major change to his circumstances that were compelling and compassionate. A submission to the delegate in relation to this waiver request that was signed by the delegate referred, among other things, to the fact that the circumstances of Mr Assaad’s nephew’s condition and his wife’s pregnancy had not developed since the visa was granted on 16 May 2008. It appears that a request of 18 July 2008 to waive condition 8503 on Ms Hamdoun’s subclass 676 visa was also refused on 29 July 2008. The decisions of 29 July 2008 are not the subject of these proceedings.
On 12 August 2008 Mr Assaad lodged another waiver request, relying on the circumstances of his nephew. He provided further supporting documentation. In a letter dated 8 August 2008 Mr Laba-Sarkis acknowledged that when he made the July 2008 application “I may not have included important information which would lead the decision maker to confirm that circumstances changed after the issue of the visa”. It was contended that Adam’s condition had deteriorated and had been diagnosed after the issue of the (subclass 679) visa in December 2007 (sic) and that there had been a change in circumstances since the applicant’s arrival in Australia. Attached to this application was a copy of the HSA assessment of 9 July 2008 in relation to Adam’s condition, which stated that he had Al Gazali syndrome which was described as a “[g]enetic abnormality associated with abnormal brain development, seizures, feeding problems, congenital heart abnormalities, kidney system abnormalities, high blood pressure and the few children reported have not survived the first year of life”. The HSA assessment found that the requirements for a carer were met.
A separate waiver request was made by Ms Hamdoun on 13 August 2008, relying on the same claims and the same information as her husband. Further supporting information was subsequently provided under cover of a letter from Mr Laba-Sarkis dated 31 August 2008. It appears from this letter that the applicants had been granted bridging visas as their subclass 676 visas expired on 15 August 2008.
On 4 September 2008 a delegate of the Minister informed Mr Assaad in writing that it was not accepted that circumstances over which he had no control had developed since the visa subject to condition 8503 was granted, that resulted in a major change to his circumstances that was both compelling and compassionate. Condition 8503 was not waived. On 8 September 2008 a delegate of the Minister provided the same advice to Ms Hamdoun for essentially the same reasons.
In each case the delegate also signed a Minute prepared by a Departmental officer as a submission to the delegate which set out the applicable provisions of the Migration Act and Regulations, summarised the history of visas and waiver requests and the basis for and evidence in relation to the most recent requests. It is not in dispute that the Minutes reflect the reasons of the delegate.
The requests were assessed against subregulation 2.05(4). In each case the view was expressed that the circumstances were not substantially different from those considered in relation to the request of 18 July 2008 (at which time the HSA carer assessment had been obtained) and that the circumstances stated in the waiver request had not occurred since the visa subject to condition 8503 was granted on 16 May 2008.
In essence, the Minutes recorded that at the time the visas were granted on 16 May 2008 it could reasonably be assumed that the applicants were aware of the nephew’s medical condition and subsequent requirement for care. The Minutes also expressed the view that the claims were of a similar nature to the previous waiver request refused on 29 July 2008 and “still do not constitute a major change” to the circumstances. It was acknowledged that Adam’s condition and care requirements could be considered to be outside the applicants’ control, but stated that the medical condition had been ongoing since Adam’s birth in November 2007 and that it could reasonably be assumed that the applicants were each aware of Adam’s medical condition prior to the grant of the visas subject to condition 8503 on 16 May 2008.
While it was recognised that the circumstances were compassionate, they were said not to be of a compelling nature as there was no evidence to show that the applicants were the only persons available to care for their disabled nephew.
The Minutes expressed the view that the applicants’ circumstances were not circumstances of the kind set out in regulation 2.05(4) and recommended that condition 8503 not be waived under s.41(2A) of the Act. The delegate’s decision was recorded with an accompanying signature on each Minute as “Not Waived”. The applicants were advised of the decisions in the letters of 4 and 8 September 2008.
The applicants sought review of the delegate’s decision of 4 September 2008 by application filed in this Court on 1 October 2008. As indicated above, while the application refers only to the decision of 4 September 2008 (which is in relation to Mr Assaad), issue is also taken in relation to the decision of 8 September 2008 concerning Ms Hamdoun’s waiver request of 13 August 2008.
It is convenient to consider first the issues raised in Mr Assaad’s affidavit and oral submissions in relation to the delegate’s consideration of Mr Assaad’s waiver request of 2 May 2008. I gave the applicants leave to raise this issue given the evidence from the respondent filed in Court in response to the contentions in Mr Assaad’s affidavit.
On 2 May 2008 the Minister was asked in writing to waive the condition 8503 to which Mr Assaad’s subclass 679 visa was subject. Mr Assaad’s affidavit evidence is that he did not “recall” that he withdrew his request of 2 May 2008 or that his wife withdrew her request, because at that time they had the assistance of a family support worker because of the exceptional circumstances of their nephew and the depression affecting his brother and his wife. There is no evidence from Ms Hamdoun before the Court. Mr Assaad took issue with the fact that in the Departmental Minutes in relation to the requests of 12 August 2008 and 13 August 2008 reference was made to the withdrawal of waiver requests of 2 May 2008 on 8 May 2008 by Mr Assaad and his wife and to subsequent waiver requests of 8 May 2008 due to the civil unrest in Lebanon.
Mr Assaad appeared to contend that to his knowledge or recollection the waiver requests of 2 May 2008 had not been withdrawn and suggested that he did not apply for a waiver on 8 May 2008 of his own free will. Mr Assaad also claimed that he had not sought and was surprised to be given a three month visitor visa based on the closure of Beirut Airport. However the essence of his contention appears to be a submission that the Minister erred in not considering the waiver request of 2 May 2008.
Mr Assaad’s affidavit evidence filed before the hearing (part of which was in the nature of submissions) was that he did not recall that he withdrew his waiver request of 2 May 2008 or that his wife withdrew her request because of Adam’s circumstances and the depression affecting Adam’s parents. He claimed these requests were not withdrawn. It was said to be “inexplicable” that on the same day they would withdraw a request and lodge another request. He claimed he had no reason to withdraw the request because he was aware of Adam’s circumstances and was willing to apply for a carer visa. He acknowledged that the waiver request of 8 May 2008 contained his signature, but claimed that he did not “voluntarily and intentionally” make a waiver request on 8 May 2008. He claimed that the Department had ignored and neglected the request of 2 May 2008 and denied him and his wife procedural fairness.
Annexed to Ms Weston’s affidavit of 22 June 2009 is a copy of a handwritten document obtained from the Department headed “To whom it may concern” and dated 7 May 2008 stating:
I Wassim Assaad – on Friday 2nd May I and my brother Khaled Assaad, we wanted to wave (sic) up my visa 8503 no Further Stay.
I would really appreciate if I can withdraw my 8503 no Further Stay.
I don’t need to stay because I’m going back Thursday 8th May.
Thank you
[signature]
7th May 2008
This document also bears notations referring to the visas of Mr Assaad and his wife, the word “WITHDRAWN” and a Departmental file number. A Departmental email annexed to Ms Weston’s affidavit refers to receipt of this letter from Mr Assaad on 8 May 2008.
In cross-examination Mr Assaad agreed that the document dated 7 May 2008 bore his signature. He also conceded that he signed another document dated 8 May 2008 (a copy of which was also annexed to Ms Weston’s affidavit) which was a condition 8503 waiver request form which stated that he had assistance completing the form from Ali Assaad and gave as the reason for requesting a waiver “Beirut airport on strike – flight cancelled to Beirut to further notice”.
As counsel for the respondent submitted, the document dated 7 May 2008 is consistent with a desire on the part of Mr Assaad to leave Australia as at 7 May 2008. While Mr Assaad’s evidence was that he did not intend to withdraw his request for a waiver and did not understand or know what he was signing, he signed a fresh request for a waiver on 8 May 2008 on a different basis, reflecting the fact that Beirut airport had closed. Moreover, in cross-examination he agreed that on 7 May 2008 he intended to leave Australia for Beirut (consistent with what is stated in the document dated 7 May 2008) but heard that Beirut airport was closed. He also conceded that his brother (who speaks English) filled in the waiver request of 8 May 2008 and explained the form to him. Such evidence supports a conclusion that Mr Assaad understood that he no longer wished the Department to consider the waiver application of 2 May 2008. I do not accept his claim that he did not know where the withdrawal of the waiver request signed on 7 May 2008 came from, given his evidence in both his affidavit and in cross-examination that he had a friend he referred to as Derya (in the affidavit described as Derya Han) assisting him with the 2 May 2008 application, that he signed the withdrawal form dated 7 May 2008 and that the waiver request of 8 May 2008 was completed with the assistance of his brother-in-law Ali Assaad who spoke English. On the evidence before the Court I am satisfied that Mr Assaad understood that he was withdrawing his waiver request of 2 May 2008 when he signed the document to that effect on 7 May 2008.
Insofar as the applicant’s oral submissions made assertions in relation to the involvement of the Department that go beyond his evidence, they do not establish any of the grounds in his application. The implication of his submissions appeared to be that he was somehow suborned to make a waiver request on a different basis and that for that reason he received only a three-month visa on 16 May 2008. However the evidence before the Court as to his intention as at 7 – 8 May 2008 is that he wished to leave Australia, but could not do so because of the closure of Beirut Airport. I am satisfied that Mr Assaad withdrew his waiver request of 2 May 2008. Hence it cannot be said that the Minister erred in failing to consider or determine that application.
In any event, as submitted by counsel for the respondent, it would be futile to consider further whether any constitutional writ should issue directed at the Minister in relation to the waiver request of 2 May 2008 (or any similar application in relation to Mrs Hamdoun, although there is no evidence from her before the Court). Not only have the 679 visas expired but critically, whatever the basis for such initial waiver request or requests and whether or not the requests were withdrawn, on 12 May 2008 condition 8503 on the subclass 679 visa was waived in relation to each of the applicants. The fact that the waiver requests were granted on the basis of circumstances in Lebanon rather than on the basis of the issues that the applicant raised in relation to his nephew and family circumstances does not change the fact that the waivers were granted. As the applicants were advised by letters of 12 May 2008, they were at that time not prevented by s.46(1)(a) of the Act from making a further application for a substantive visa while they remained in Australia. They were also advised that as their visas had expired they should lodge valid substantive visa applications as soon as possible. They then had the opportunity to apply for any substantive visa.
Condition 8503 had been imposed on the subclass 679 visas granted in December 2007. What the applicants sought to achieve with the waiver request of 2 May 2008 was in fact achieved, in that a waiver of condition 8503 was granted, albeit on another basis. In those circumstances any decision to require the Minister to reconsider the waiver applications of 2 May 2008 would be of no effect as a waiver of the condition 8503 imposed on the subclass 679 visas was granted in response to the requests of 8 May 2008. Hence any order by the Court to this effect directed at the Minister would be of no utility.
It is not for the Court to engage in speculation as to why after condition 8503 was waived, the applicants then applied for subclass 676 Tourist visas (instead of applying for some other class of visa such as a subclass 836 (Class BU) Carer visa if they were eligible for such a visa). Whatever the reason, no reviewable error on the part of the Department is apparent in that respect.
Mr Assaad claimed that he did not ask to be granted a three months “renewal” of a visitor visa. However it is apparent from the affidavit of Ms Weston affirmed on 29 June 2009 that the subclass 676 visas were granted in response to signed applications dated 15 May 2008 for a further stay as a visitor in the name of each applicant. In each form, in response to a question about reasons for requesting a further stay, the response was “I was booked to return overseas on 8/5/08 but was stopped at the airport due to the current complications in Lebanon”. In each case a stay for “3 months until the situation in Lebanon settles” was requested. Mr Assaad’s application also referred to the fact that he was “self employed overseas and currently have an employee who is taking care of my business.” There is no evidence that the applicants sought any other class of visa at this time.
Mr Assaad also took issue with the fact that a fresh condition 8503 was imposed on each subclass 676 visa. However under subclause 676.613(b) of Schedule 2 to the Migration Regulations, condition 8503 may be imposed on such a visa. Condition 8503 was imposed on the subclass 676 visas granted to the applicants on 16 May 2008. The fact that condition 8503 may be imposed was disclosed in the notes to the applications for further stay as a visitor. Those notes also advised about the circumstances in which a security bond lodged in support of any sponsored visitor visa (like the original subclass 679 visas) may be forfeited (another matter Mr Assaad complained about). The fact that the applicant claimed not to know that condition 8503 may be imposed on any further visitor visa in response to the applications of 15 May 2008 does not establish any jurisdictional error on the part of the respondent. Because condition 8503 was imposed, if the applicants subsequently wished to make a valid application for another substantive visa (such as a carer’s visa) while remaining in Australia they would have to obtain a waiver of condition 8503 imposed on the subclass 676 visas. This is what they sought in the applications of July and August 2008.
No issue is taken in these proceedings in relation to the 29 July 2008 decision not to waive condition 8503 imposed on the subclass 676 visas. On the material before the Court no jurisdictional error is established in relation to the events preceding September 2008.
There are four grounds in the application filed in this Court on 1 October 2008 which have been considered in relation to the September 2008 decisions in relation to each applicant. The first “ground” is that the decision dated 4 September 2008 was not received until 19 September 2008. This statement of fact does not raise any issue as to jurisdictional error.
The second ground is that the delegate of the Minister did not apply the law correctly. The application asserts that it was clear (in particular from the HSA assessment) that Adam and his mother were in need of a carer and that the “applicant” was willing and able to provide that care. This appears to be intended to be a reference to Mr Assaad. It was further contended that the delegate overlooked the question of whether compelling and compassionate circumstances had developed since the applicant was granted the visa on 19 December 2007. In particular it was said that the delegate overlooked “the grounds of [Mr Assaad] and his wife requesting to spend honeymoon in Australia and at the time of applying for a visa both were not aware of the illness of the child. Such deterioration and compelling circumstances developed after the grant of the visa. Therefore the Delegate erred in her decision not to waive the 8503 condition”.
However, as counsel for the respondent submitted, the difficulty with this ground is that it focuses upon the wrong date. While the applicants arrived in Australia in February 2008 pursuant to subclass 679 visas granted on 19 December 2007 and remained here until 9 May 2008 under the authority of those visas, those are not the relevant visas in relation to the decisions of September 2008. The original subclass 679 visas ceased to be in effect on 9 May 2008. From 16 May 2008 until 15 August 2008 the visas held by the applicants were the subclass 676 tourist visas (which were sought and granted after 8503 condition had been waived).
As discussed above, condition 8503 was also imposed upon those subclass 676 visas. Section 46(1A) provides that an application for a visa is invalid if the applicant is in Australia and has held a visa subject to a condition described in s.41(2A) (such as condition 8503) and the Minister has not waived that condition under s.41(2A). Hence, in order to apply for another substantive visa the applicants had to seek a waiver of condition 8503 imposed on their subclass 676 visas granted on 16 May 2008. They did so. In considering the most recent waiver request, it was the date of the grant of the subclass 676 visas, rather than the date of grant of the original subclass 679 visas, that was the relevant date for assessing whether the requirements in regulation 2.05(4) were met.
Counsel for the respondent submitted that the Court could assume that the Minutes consisting of submissions to the delegate of the Minister prepared in relation to each of the applicants and signed by the delegate together with an indication of whether the decision was to waive or not to waive condition 8503 could be taken to have been read by the delegate and hence that the reasons for the decision could be inferred to be the reasons contained in those submissions. This was not disputed by the applicants.
16 May 2008 was correctly treated as the relevant date by the delegate in relation to the August 2008 requests for waiver of condition 8503 by each of the applicants. In each of the Minutes, the question of whether the circumstances stated in the written requests for waiver had occurred “since” the visa was granted was answered “No” on the basis that the relevant date was 16 May 2008, the date on which the applicants had validly sought and been granted visitor visas following the waiver of condition 8503 due to civil unrest in Lebanon. The Minutes each referred to the applicants’ wishes to remain in Australia to assist Mr Assaad’s brother and sister-in-law with the care of their disabled son, Adam, and with their depression because of that serious illness. However it was concluded in each case that at the time the visas were granted on 16 May 2008 “it can be reasonably assumed that [the applicant] was aware of [his or her] nephew’s medical condition and subsequent requirement for care”.
The delegate’s conclusion (expressed in the letters of 4 September and 8 September 2008) in each case was that it was not accepted that since the applicants were granted the visas subject to the 8503 condition, circumstances had developed over which he or she had no control resulting in a major change to their circumstances that was both compelling and compassionate.
The difficulty that faces the applicants is that the circumstances on which they relied arose before 16 May 2008 when the relevant visas on which the condition 8503 was imposed came into effect.
The critical issue under regulation 2.05(4)(a) is that the compelling and compassionate circumstances relied upon have to have developed “since the person was granted the visa that was subject to the condition”. In this context (in relation to the waiver requests made in August 2008 and determined in September 2008) the visas in issue were the subclass 676 visas granted on 16 May 2008 and not (as appeared to be suggested in the letters from Mr Laba-Sarkis seeking the waiver and as was submitted by the applicants in these proceedings) the original subclass 679 visas which had expired in May 2008 and in relation to which a waiver of condition 8503 had been granted.
In each case the delegate’s conclusion was on the basis that the relevant circumstances did not develop since 16 May 2008 because, in effect, the nephew had an ongoing medical condition. In light of the material presented in support of each of the waiver applications to the effect that Adam was suffering from a condition that involved genetic abnormalities and that both of his parents had been diagnosed by the end of April 2008 as having clinical depression, these conclusions were open to the delegate.
I note also that the Minutes addressed each of the elements of regulation 2.05(4), finding that the circumstances were compassionate in the sense that the applicants would like to remain in Australia to assist Mr Assaad’s brother and family with the ongoing care of their disabled son. However the circumstances were not found to be compelling as there was no evidence to show that the applicants were the only persons available to care for their disabled nephew. It has not been established that the delegate erred in consideration of the temporal element in regulation 2.05(4).
The third “ground” is that the material provided to the delegate demonstrated that the required care and the wishes of the applicants to provide that care were circumstances that had developed after the grant of the visa. Again, as set out above, insofar as this ground relies on a false premise, namely that the relevant date was 19 December 2007, it does not establish jurisdictional error. Nor, to the extent that the applicants take issue with the merits of the decision, is jurisdictional error established.
Ground four and Mr Assaad’s oral submissions suggest that the certificate from HSA (to the effect that his nephew was in need of a carer) was a circumstance that had developed since the visas were granted. The fourth ground refers to the fact that the applicants arrived in Australia on 9 February 2008 and that Adam, born on 5 November 2007, was not diagnosed as suffering from Al Gazali syndrome, brain, kidney and other abnormalities until after 26 February 2008. Reference was made to the fact that the HSA certificate was issued on 10 July 2008. However, this conflates the issues of the carer’s certificate and identification of the child’s condition and his need for care and addresses the wrong date in relation to waiver of condition 8503. Moreover, it is in fact apparent from the material before the Court that evidence in relation to the child’s condition and the impact on his family (while not as extensive as was later provided) was in fact relied upon in support of the original visa waiver application of 2 May 2008 as conceded in the letter of Mr Laba-Sarkis of 8 August 2008 (referring to the fact that the family support worker Derya Han had attended the Departmental office early in May 2008 and given the Department a letter confirming that there had been a change in circumstances since 26 February 2008).
Even if the deterioration in the condition of the child and his parents occurred after the original visas were granted in December 2007 or after the applicants’ arrival in Australia on 9 February 2008, the applicants’ contentions do not overcome the fact that the relevant date for the purpose of consideration of the discretion to waive condition 8503 on the subclass 676 visas was 16 May 2008. Regulation 2.05(4)(a) refers to circumstances that have developed “since the person was granted the visa that was subject to the condition”. The visas subject to the condition were the subclass 676 visas. They were granted on 16 May 2008.
The HSA assessment was dated 10 July 2008. However there is a distinction between the circumstance of Adam’s need for care relied on by the applicants and evidence of this need, such as the HSA assessment. The fact that the assessment post-dated the grant of the visas in question is not necessarily evidence that the circumstances developed since the time of the visa grant. In this case, given the supporting evidence that predated 16 May 2008 in relation to Adam’s condition (such as the specialist medical practitioner’s letters of 19 February 2008 and April 2008, supporting letters from a family support worker, an intern clinical psychologist and supervising clinical psychologist and a paediatric social worker, as well as the 2 May 2008 waiver request based on Adam’s condition and the mental health issues of his parents), it was open to the delegate to find, as was found, that the circumstances (in particular Adam’s genetic condition) had not developed since the subclass 676 visas were granted on 16 May 2008. The fact that a diagnosis in terms of Al Gazali syndrome and an assessment of Adam’s need for care was made in July 2008 does not mean it was not open to the delegate to find that the circumstances (that is the condition and the resulting need for care) had not developed after 16 May 2008.
Given that the HSA assessment was also relied on in the July 2008 waiver requests, it was also open to the delegate to reach the conclusion that the circumstances were not substantially different from those considered previously (that is on 29 July 2008). In each of the Minutes the issue of whether the circumstances were substantially different from those considered previously was addressed. In each case the conclusion was reached that the circumstances were not substantially different as the same issues in relation to care of the child and his family (and the second applicant’s pregnancy) were raised. No jurisdictional error is established in this respect.
Further, insofar as it is intended to be contended that the delegate failed to have regard to the HSA assessment, it is apparent from each of the Minutes that the HSA assessment was referred to as evidence accompanying the request for the waiver and that the claims in that respect were considered. Thus, in relation to Mr Assaad it was recorded that on 18 July 2008, when the earlier request for waiver was lodged, Mr Assaad claimed that his nephew had undergone an HSA carer’s visa assessment. It was recorded that he claimed that his nephew Adam suffered from Al Gazali syndrome and that Adam required ongoing full-time care as indicated in the HSA carer’s assessment. However the Minute also recorded that while the medical condition and ongoing care requirements of Adam could be considered outside Mr Assaad’s control, the condition was such that it had been ongoing since the child’s birth in November 2007. It was concluded that it could be reasonably assumed that Mr Assaad was aware of Adam’s condition prior to the visa grant on 16 May 2008 and that he was aware of the subsequent requirement for care of the child. The same approach was taken in relation to Ms Hamdoun. It has not been established that the delegate failed to have regard to the HSA assessment or, more generally, to the claims made in relation to the nature and extent of the circumstances of Adam and his family and whether these matters came within regulation 2.05(4). This ground is not made out.
The applicants also raised the issue of whether consideration was given to Mr Assaad’s brother’s depression. Such depression as well as that of Mr Assaad’s sister-in-law and issues about family conflict were referred to in a letter of 30 April 2008 to the Department from the family support worker. These matters were addressed in the Minutes. It was open to the delegate to find that such circumstances had not developed since the visas were granted on 16 May 2008.
Ms Hamdoun’s pregnancy was also addressed by the delegate. It had been raised in the waiver requests of 18 July 2008. It was open to the delegate to find that the circumstances had not resulted in a “major” change to the applicants’ circumstances since the visas were granted on 16 May 2008.
It has not been established that the delegate failed to take matters into consideration or to follow proper procedure in a manner constituting jurisdictional error.
No jurisdictional error has been established on any of the bases contended for by the applicants. The applicants contended that their circumstances were compelling and compassionate. However the Court does not have jurisdiction to grant relief on that basis. As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 31 July 2009
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